Statement to the United Nations Security Council on the Situation in Libya

Statement by Fatou Bensouda ICC Procurator to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011).

New York, 5 November 2015.

”Libya has been embroiled in a seemingly endless cycle of violence, large scale commission of crimes and chronic instability, with serious debilitating ramifications for not only the well-functioning of state institutions, but also the human rights landscape in the country.

The breakdown of law and order, induced by incessant conflict and political divide, has resulted in an increase in the number of violations of international human rights and international humanitarian law. In such an environment, national efforts aimed at strengthening accountability for atrocity crimes and establishing the rule of law face great challenges.

But from trial and tribulation comes hope. As we are gathered here today, the Libyan people’s long ordeal may soon see a redirection towards a more promising future for Libya. Thanks to the tireless efforts of the United Nations Support Mission in Libya (“UNSMIL”), and on the strength and commitment of the Libyan people, significant progress has recently been made towards the goal of achieving peace and stability in the country through the creation of a government of national unity.

The ongoing national dialogue, facilitated by the United Nations (“UN”), towards the establishment of the Libyan Government of National Accord represents hope for transition to national unity and durable peace; carrying important promise for Libya’s efforts in the promotion of the rule of law, the protection of civilians and the ending of impunity for atrocity crimes.

Any such initiative that is embraced by the Libyan people and achieves these laudable goals, including paying homage to justice as a critical pillar of sustainable peace, is of course welcomed by my Office.

In yet another important development of note, UNSMIL has facilitated successful talks towards the resolution of the Tawergha issue. The agreement reached in Tunis in September to develop strategies for the return of the Tawergha as well as to establish clear plans for reparations to the victims is a welcome development.

It is particularly noteworthy that the Misrata/Tarwergha Joint Committee affirmed its full support to the political dialogue and the formation of a Government of National Accord to meet the aspirations of the Libyan people to establish the rule of law, end the conflict and safeguard Libyan unity.

The era of accountability and rule of law, on which to build the future of the country, may indeed be within reach for the Libyan people. We, as a collective, cannot fail the people of Libya by standing idly by as the country degenerates into chaos and further instability.

My Office is ready to fully play its part in accordance with the Rome Statute by ensuring accountability for atrocity crimes in Libya. To this end, the Council’s tangible support remains crucial.

As indicated in my Office’s tenth report to this Council, a significant body of material provided by the Libyan authorities in late December 2014 continues to be reviewed, analysed and investigated, resulting in investigative progress, shedding light on instances of atrocity crimes allegedly committed in Libya. Our cooperation with the Libyan authorities in obtaining relevant materials continues.

I stress the importance of undertaking investigations with respect to the ongoing atrocity crimes in Libya and reiterate my Office’s every desire to do so. To this end, the Office requested resources for additional investigations as part of its 2016 proposed budget for consideration by the States Parties of the International Criminal Court (“ICC” or the “Court”). However, there are indications that those resources will likely not be forthcoming.

As such, resource constraints in 2016 will impede the Office’s ability to conduct these additional investigative activities.

It is of paramount importance that the ongoing crimes committed by different actors in Libya are investigated and that my Office is provided the requisite resources to undertake these necessary investigations in accordance with its mandate.

My Office, therefore, relies on the critical financial support of States Parties in this regard and I take this opportunity to call on them to provide this crucial funding.

I equally and strongly invite the Council to seriously consider assisting the Office, in accordance with article 115(b) of the Rome Statute, to obtain the resources required for the effective investigations of alleged crimes committed in a situation that has been referred to the Court by this august body. Devising innovative and effective strategies and action plans on how to give meaning to the provisions of article 115(b) of the Rome Statute are essential.

Turning to the cases of the accused: Saif Al-Islam Gaddafi and Abdullah Al–Senussi, the Council will recall that the Appeals Chamber of the ICC affirmed the admissibility of the case against Saif Al-Islam Gaddafi on 21 May 2014, and the inadmissibility of the case against Al-Senusi on 24 July 2014.

To date, despite repeated demands by my Office, Saif Al-Islam Gaddafi has not been surrendered to the custody of the ICC. The Libyan authorities must heed the Council’s calls for cooperation and comply with the Court’s request to immediately surrender Saif Al-Islam Gaddafi to the ICC. The Libyan authorities are under a clear legal obligation to do so, and remain non-compliant by failing to surrender him into ICC custody.

In short, Libya must transfer Saif Al-Islam Gaddafi to the custody of the Court without further delay.

As you are aware, on 28 July 2015, the Tripoli Court of Assize sentenced both Saif Al-Islam Gaddafi and Abdullah Al-Senussi, among other co-defendants, to death for the crimes they allegedly committed during Libya’s 2011 uprising.

This was an issue of concern as my Office is still calling upon Libya to surrender Saif Al-Islam Gaddafi to the ICC while it has continued to monitor and collect information to enable it determine whether there are new facts that may support an application for a review under article 19(10) of the Rome Statute of Pre-Trial Chamber I’s decision finding the Al-Senussi case inadmissible before the Court.

My Office was also deeply concerned by videos of alleged acts of torture against Saadi Gaddafi at the Al-Hadba prison which circulated online in August 2015. Reports of alleged acts of torture or similar inhumane acts in Al-Hadba prison are relevant to Al-Senussi’s case in the context of articles 17 and 19(10) of the Rome Statute.

My Office is currently investigating the circumstances depicted in the videos, including seeking information from Libya and reviewing and assessing the materials already furnished by the Libyan authorities. It is incumbent upon the Government of Libya to make good faith efforts, not only to condemn and prevent such criminal acts, but to fully investigate and prosecute alleged perpetrators.

In its latest correspondence to my Office dated 23 October 2015, and subsequent recent meetings with my team and myself directly, Libyan authorities have assured my Office that these allegations are being pursued, and that meaningful and concrete actions have and will continue to be taken in this regard.

In addition, the Libyan authorities have provided my Office with documents related to their investigation into the alleged criminal events in Al-Hadba prison. Our initial assessment of the information provided gives hope for optimism about these national efforts. My Office will continue its constructive engagement with the Libyan authorities to ensure the requisite information is provided for its own assessment of Rome Statute requirements.

It is also important to highlight that on 30 July 2015, my Office filed a Request with Pre-Trial Chamber seeking an Order directing Libya to refrain from executing Saif Al-Islam Gaddafi, to immediately surrender him to the Court, and to report his death sentence to this Council.

In its response on 20 August 2015, Libya explained that the death sentence against Saif Al-Islam Gaddafi was non-enforceable in Libya because his trial was held in absentia, and that he will enjoy an absolute right to a new trial when he is transferred from Zintan into the custody of the Libyan authorities. Libya acknowledged that Saif Al-Islam Gaddafi was not in its custody.

In relation to the Al-Senussi‘s case, my Office continues to monitor proceedings at the national level and collect information to enable it to determine whether there are new facts in support of an application for a review of the decision on the admissibility of the case.

It is worth emphasising that under article 19(10) of the Rome Statute, my Office can only submit a request for review of the Pre-Trial Chamber’s decision if it is “fully satisfied” that there are new facts which negate the basis of that decision. The Appeals Chamber of the ICC has held that for due process violations in a domestic trial to lead to a case being deemed admissible before the ICC, the violations must be “so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused.”

To this end, my Office sought and is carefully analysing information on the progress of the proceedings against Mr Al-Senussi from UNSMIL, Human Rights Watch, and the Libyan authorities.

My Office currently awaits the full UNSMIL report on the Libyan trial of Saif Al-Islam Gaddafi and Abdullah Al-Senussi and the trial judgment, and will continue to follow the situation, to collect and analyse information with a view to determining whether to seek the Chamber’s review of the admissibility of the Al-Senussi’s case.

My Office’s assessment of the information at its disposal at this stage is that it does not support an application for a review of the Pre-Trial’s decision on the admissibility of the case against Al-Senussi. This position is necessarily limited to the information the Office currently has in its possession and is subject to change in accordance with reliable information that it may receive in the future.

My Office continues to monitor the situation in Libya and is concerned that large scale crimes, including those of the ICC jurisdiction are being committed by all parties in the conflict.

I remain equally concerned that all sides including the Libyan National Army (“LNA”), Libya Dawn, and the so called Islamic State of Iraq and the Levant or ISIL; and their respective allies, and international actors continue to commit attacks resulting in civilian casualties.

During the reporting period, of the reported 634 separate incidents, a total of at least 1,539 violent deaths were recorded. Total numbers of violent deaths have seen an average monthly increase in 2015. Civilian deaths have fluctuated, though no less than 60 per month have been recorded this year alone.

Civilian deaths attributed to ISIL and its allied organisations have been consistently highly numbered than those of other perpetrators in the reported period. ISIL led attacks have focused on the cities of Derna and Sirte meanwhile significant clashes between Islamist extremists and ISIL in Derna in June saw ISIL driven from the city.

There have been at least 37 recorded incidences of car or suicide bombings; 26 of which have been attributed to ISIL. Large scale abductions by ISIL have in most cases led either to executions, and in certain cases victims’ whereabouts have remained unknown. Persons are executed by ISIL for perceived activities such as spying, homosexuality and social activism.

My Office is further concerned that heavy military clashes between LNA and Islamist extremists in the Benghazi area have continued with at least 99 civilians reportedly killed between April and August 2015. Airstrikes from LNA, Libya Dawn and international actors have also reportedly resulted in civilian deaths. Civilian homes, places of worship and medical facilities have been repeatedly affected.

My Office also learnt with regret of recent escalation of tribal fighting between Tebu and other communities and Libya Dawn-aligned militias in the south of the country, around Sabha and Kufra and the fact that this has reportedly displaced an estimated 12,000 civilians since July according to Office of the High Commissioner for Human Rights (“OHCHR”).

It has also been reported to my Office that the number of people that have fled because of the fighting has doubled to almost 450,000 in a span of a year from September 2014.

My Office recalls that those responsible for these crimes can be prosecuted either at the national level or at the ICC. I reiterate here my Office’s willingness and commitment to undertake further investigations in Libya, but stress once again the need for States Parties, and the Council, to ensure adequate funding to my Office for this purpose.

Pursuant to UN Security Council Resolution 1970, the Council decided that “the Libyan authorities shall cooperate fully with, and provide any necessary assistance to, the Court and the Prosecutor pursuant to this resolution”; this important declaration has been reiterated in subsequent resolutions of this Council.

Continued cooperation, consultation and coordination between my Office and the Libyan authorities remain crucial for the implementation of the Memorandum of Understanding concluded in November 2013 on burden-sharing regarding investigations and prosecutions in Libya. The commendable efforts by the Libyan Prosecutor General and the Libyan Representative to the Court to engage with my Office are encouraging and must be supported.

The Office appreciates the cooperation it continues to receive from both States Parties and non-States Parties, as well as international organisations in the Libya situation, and looks forward to strengthening efforts and synergies to assist Libyan authorities in their efforts to build the rule of law in Libya.

In this regard, I reiterate my previous calls to assist Libya in strengthening its national capacity to respond to Rome Statute crimes through the formation of an international contact group on justice issues. The recent gains towards the establishment of the Libyan Government of National Accord and national unity may indeed increase the prospects of reviving discussions on this proposal in the near future.

Similarly, I appeal to all other States that have not yet done so, to engage and cooperate with my Office. Some of the evidence and persons of interest to my Office are located outside of Libya and can only be accessed through the cooperation of States.

My Office will continue to lend its support to the efforts of the Government of Libya and its international partners, such as the UN, to address impunity in Libya and reaffirms its commitment in the dialogue with this Council on that mission.

Ending impunity for atrocity crimes in Libya is an important goal that is both achievable and necessary for sustainable peace and stability in the country. It is also a goal that can only be met through the joint action, commitment and substantial support of all the relevant actors.